AP tries to shake down Shepard Fairey over Obama poster he didn't profit from (updated)

Update at bottom of post. Bottom line, the photog says at first he wasn't even sure it was his photo, he is not mad at Fairey, and he's not looking at any lawsuits. This is all about AP, not the photog.

Not long ago on Boing Boing Video, we ran an episode with Shepard Fairey in which the artist explained how the iconic Obama poster came to be -- and he explained that he does not profit from the poster, though a vast network of bootleg businesses do. The Associated Press is suing Fairey, for having hand-drawn the image in part from a photo taken by AP photog Manny Garcia. Discussing the case with Sean Bonner over at LA Metblogs, photographer Glen E. Friedman (who appeared with Fairey in our four-part video miniseries about their work and collaborations together) said...

Funny thing is not just because he’s my friend, but I side with shepard on this for several reasons.

#1 the shot is literally a dime a dozen shot, absolutely nothing special about it, Shepard made it special, in fact the un-cropped original i’ll attach here, as you can see was more important before he cropped it for his art. (george clooney made it special)!

#2 he actually donated every penny he made from it back into the campaign to get Obama elected. Unfortunately all the after market sales of his posters he has no control over, and the people who bootlegged his stuff and sold it of course he has no control over. and when he first created it it was mainly a wheat paste poster made to go around the country before super tuesday, it got viral after that. at which point he probably just should have approached AP for rights which he probably could have gotten pretty cheaply for this use, just to be 100%. but so goes the life of a graffiti/street artist. one is in The Smithsonian now.

#3 if Shepard did profit from the use other than the obvious gain we all receive by not having a total piece of shit head of state, i as the photographer would certainly be concerned, but when an image is used for charity or something other than straight merchandise that helps a "cause" not just someone's bank account, I’d be cool with that. But make merch of an already iconic image, and profit on it, or attach your brand to it? without release from the image maker or the subject? and indeed i will make sure you get dragged through hell if i can help it.

Photographer Mannie Garcia had this to say over on Tom Gralish's Philadelphia Inquirer photographer blog:

"Of the iconic poster he said, 'I've been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn't snap. It never occurred to me it was my picture. I thought, 'that's familiar.' I would see it and say that's cool, but it did keep sticking in my head.' He was quick to add he is not mad at Fairey, and he's not looking at any lawsuits. 'I know artists like to look at things; they see things and they make stuff. It's a really cool piece of work. I wouldn't mind getting a signed litho or something from the artist to put up on my wall.'"

I like how contributor to this site that puts up so much about how music and other forms of art should have copyright restrictions basically reduced to nothing, which by the way I agree with, states that they would drag the same type of copyright infringement situation “through hell” Art has always been about building on other art and life in general. I loved the original photograhpers response.

@#42 – That’s what I’m saying. The sway of where the money went has nothing to do with the original artists’ (Fairey or the photog) work or what was or wasn’t done with the profits. The issue at hand is clearly where to draw the line of appropriation and plagiarism.

Isn’t the real crime here the production of a seemingly endless stream of boring art?

Really, though. Here’s the bottom line.

Shepard Fairey’s Obama poster constitutes commercial use (as an advertisement) of an appropriated image. It’s not a “fine art” image, so it doesn’t get the kind of blanket coverage legitimizes blatantly derivative works like a Roy Lichtenstein or a Mel Ramos painting.

Shepard Fairey is a commercial artist, and should know better about properly licensing source images for commercial works. Given that Fairey is in hot water all the time for appropriating images, he really has no excuse for ignorance in this, or any other case.

Fairey will probably end up paying the AP (it’s their photo – the photographer’s opinion is largely irrelevant here) some kind of licensing fee for the image, like he should have done in the first place, and that will be that.

I bet you could find 5 different photographs of Obama from that angle. Who is he infringing on? Everyone who took a similar photo? Just the particular one he happened to look at while drawing that poster? How can anyone else really know what his inspiration was?

Photographers shouldn’t get more protection than other artists. If you can take a photograph of copyrighted material, why can’t an artist do a (completely changed!) rendering of 10% of a copyrighted photo?

Copyright is not a right. It’s not in the U.S. constitution. It’s a limited time, exclusive license designed to make it profitable to produce intellectual property. You never have a right to control criticism or parody of your work. You have only a limited time privilege to control distribution and derivation of your work.

“Shepard Fairey has made a career of copying other artists work almost identically”

So not true… he maybe doesn’t give credit to some artists for the original work. But he doesn’t “copy” anything. And his art is certainly not plagiarism. Just take a second look at the pictures in the first article you linked to.
He takes work and puts it out of context, the message is different. And that’s the whole point of his work. Someone criticizing him for plagiarism clearly doesn’t get the point of what he does.

He’s also incredibly hypocritical – try to copy, or even parody the Obey brand and you may get a nice c&d letter in the mail; just ask Baxter Orr about his.

Hate to break this to you, but Fairey does have a long history of encouraging other people’s remixes and parodies of his own work. He even hosts them on his own web site. Baxter Orr’s poster of Fairey’s Obey Giant was an exact replica with one modification, not an original art piece that merely referenced an earlier image. (You’ll note that Fairey’s estate did not try to stop Orr’s “Dope” poster parody.)

“Of the iconic poster he said, â€˜Iâ€™ve been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didnâ€™t snap. It never occurred to me it was my picture. I thought, â€˜thatâ€™s familiar.â€™ I would see it and say thatâ€™s cool, but it did keep sticking in my head.â€™

He was quick to add he is not mad at Fairey, and heâ€™s not looking at any lawsuits. â€˜I know artists like to look at things; they see things and they make stuff. Itâ€™s a really cool piece of work. I wouldnâ€™t mind getting a signed litho or something from the artist to put up on my wall.'”

Now, I know it’s probably AP and not Garcia who owns the rights to the original photograph, but still. Garcia doesn’t give a monkey’s.

I am not a lawyer, so I won’t comment to the legal issues. But as much as I am an admirer of Shepard and Glen, I take enormous issue with the concept that Shepard does not profit from this piece. Shepard is not just an artist, he’s a self-marketing genius. His logo is attached to the most popular image currently on earth. I’d say Shepard is getting a billion dollars of free marketing with this piece (I kid you not), and you could say that a lot of the appeal of the iconic Obama poster is that it is an Obama poster.

Hopefully, everyone is aware that huge corporations pay Shepard (and his design firm) big bucks for design work. This poster is the ultimate marketing tool for Shepard’s business (tops the Obey Giant image, another feat in marketing). I think Shepard spreads around his wealth, so it’s not like he’s an evil corporate mastermind. But it’s totally naive to think for a moment that he doesn’t profit from the existence of this poster, even if it isn’t from direct poster sales. Heck, Shepard can sign a poster and give it to someone (be it friend, client, or politician), and it’s like he just gave someone $1,000-$5,000 in good will (the going rates of the signed poster).

@ FEE: If my memory serves, a decade ago, a stock photography company successfully sued an artist who drew an image based on one of their photos.

Finally, something to think about: who do you think has more money and power, Shepard or the photographer who took the source image?

Mannie Garcia: “The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.”

Also:

Q: “So you are pleased with how things are going?”

MG: “Honestly, no I am not pleased with how things are going. I think things could be going in a more positive way. Meaning, I want to be kept more in the loop with things. I know AP management is keeping me in the loop, so sometimes I have to ask questions more than once to get an answer. I honestly believe that AP is doing it’s best to resolve this situation in a fair way. I mean fair with Mannie Garcia, fair with Shepard Fairey, and all of that. Basically, I hope that all turns out well with all parties concerned.”

If I were arguing this case on behalf of Mr. Fairey, I wouldn’t go for fair use or emphasize the fact that he didn’t keep the money generated from the collage. I would argue that the work is not substantially similar to the original and is therefore not infringing. One way to argue this point would be a “sweat of the brow” analysis; the fact that Mr. Fairey has a technical laborious process works in his favor. Another approach would be a historical analysis; the work of Andy Warhol and other artists who used pop culture images in thier creations. I don’t think it’s as simple as calling this commercial art. mr. Fairey has shown art pieces in galleries around the world and merely reproducing a work doesn’t make it commercial.

I’m suprised that a lot of the commentators here are attacking Mr. Fairey for using another piece of work as a basis for creation. It seems more obvious to me that the use of popular iconic images was fair game before our heightened copyright extension/expansion, and that it is always better to err on the side of allowing any artist, no matter how famous, being allowed to build on what came before. Art is not created in a vacuum.

Awesomerobot: maybe so, still, forbearance may be more advisable, more politic, in this instance. What does this action profit AP? It just looks spiteful: and what is the quantum of the profit to be disgorged? If it ain’t large, well…NB the Obama campaign could I think reimburse it without going insolvent, eh?
Just so, forbearance, forgiveness, of debt seems overlooked as the “answer” to the current economic crisis. Another way of destroying debt: but more orderly.
So what are the right-wing Fundamentalists waiting for? “Forgive us our trespasses(debt) as we forgive those who trespass against(owe) us…”
Shouldn’t they be picketing the Fed as well as the Abortion Clinics?

@22, it’s never safe to assume. Either things are or they are not. If he hasn’t monetarily benefited from the image then he hasn’t. Yes, he’s the artist who created this image, that became iconic and viral and that everybody else knows. Give him that. It became a graphic symbol.

If an artist can’t take something and make it better, then we will never build on something and we will always be starting from the beginning. Now, the AP could have taken this opportunity to get the credit they deserve for the original picture. But they have chosen to go all proprietary.

Now, instead of assuming, I will pose the question if the AP has ever, ever, ever used, re used any news content or photograph in their stories. Does someone know?

Even the wildest supporters of Creative Commons note that acknowledging the original artist is part of the process. Remixing is fine, but you need to admit that you’re remixing. Don’t pretend you created original art, when all you did is take someone else’s image and copy it almost identically. Farley appears to have forgotten this very basic step in the process.

As to his donating the proceeds from the poster, that does not negate the fact that he made profit. Plus, as Cory points out on a regular basis, releasing your work gives you name recognition and that has significant value in and of itself. Clearly Farley derived quite a bit of value from his appropriation of this photograph. He needs to own up to it & come clean about the originals for all his other pieces too.

Does anyone here who has a problem with Fairey’s work actually do anything creative themselves? There’s nothing new under the sun.

Do the same people truly understand the concept that Fairey was/and is, foremost, a street artist with a punk credo? That would be street art with a DYI ethic, a rarity these days. Please feel free to investigate Art Chantry and have a gander at a fabulous book titled ‘F***ed Up & Photocopied.’

Why is an artist a sell-out just because he makes a few bucks? It’s what most of us artists can only dream of in the US. And if I’m expected to donate all my skimpy proceeds only to charity, instead of my bank account, you folks are confusing art and commerce. They’re not always one and the same.

I dont agree that the AP has any right to sue Fairey, but I think its about time people are getting a glimpse of how completely unoriginal he really is.
Shepard Fairey has made a career of copying other artists work almost identically, never giving them credit and pretty much getting away with it because of their relative obscurity. Im not talking other art that has ‘inspired’ or ‘influenced’ him, were talking about essentially photocopying and tracing complete works of art and then stamping his own signature and brand upon them. As for this AP photo, he only recently gave credit to the photographer, after repeatedly denying that he was indeed ‘inspired’ by the photo in question.

“But make merch of an already iconic image, and profit on it, or attach your brand to it? without release from the image maker or the subject? and indeed i will make sure you get dragged through hell if i can help it.”

Isn’t that what Shepard Fairey does ALL THE TIME anyway? Even if this case is excepted, the guy constantly stamps a giant on something and calls it his own.

I think it’s great that he donated all the profits back into the Obama campaign, but I don’t think that exactly counts as “not profiting from”. He made profits, he chose how to spend them. I’m thankful that he DID donate it to the campaign, but maybe the photographer that snapped the shot was a McCain supporter.

Haven’t we been arguing the limits, boundaries and legal statures of mass appropriation for decades? This is just another slice in the big Warhol pie. Not only that, but also teeters on intellectual property, which isn’t unboingboing. Fairey is just the latest practitioner in appropriation and collage. Things just can’t be settled on the basis of charity or public service (ie donations to a specific political party).

Holmes @50: the “sweat of the brow” doctrine has no merit in copyright cases. See, e.g., Feist. Nobody is suggesting that Fairey should make that argument because we don’t want him to get laughed out of court.

@#57: Totally. I think that day in my copyright class we were talking about ways that judges sneak in sweat-of-the-brow analysis in order to let people off the hook. The case I was thinking of at the time was Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989 (1980), where the court used an artist’s travels, research and awards to determine that a belt buckle rose “to the level of creative art.”

Of course, that case was about separability, not fair use, whoops! I don’t think we’d eve read Feist at that point.

“But make merch of an already iconic image, and profit on it, or attach your brand to it? without release from the image maker or the subject? and indeed i will make sure you get dragged through hell if i can help it.”

Republican revenge. Still hurting over Nixon; scared about what might come tumbling out of the closet, now they’re out.
Will there be a Democrat as Secretary of Defense(War) ever again? Or have the Brass put their foot down over that?

On a less sarcastic note, I love how when someone else other than Fairey rips off a photographer it’d make them an outright criminal – but since it’s someone we like it makes the AP a bunch of raving lunatics.

Boingboing posts about photographer’s rights issues every now and again – but now you’re quoting someone who thinks rules don’t apply here because he thinks the photo is generic? give me a break.

Also, I’ve heard more than a lifetime’s worth of Fairey in the past 6 months – that’s more marketing than money could buy. To say that Fairey didn’t outright benefit from this is ridiculous. He did actually profit from this, but he chose to donate it. Who’s to say that the photographer wanted the image to support Obama?

There’s no free range to steal images just because it’s for charity.

So, the point is – Fairey benefits and doesn’t credit the source once again… but don’t worry it’s ok for him to be an unethical bastard because we like him and agree with his political standpoint. I’d love to see the reaction from bloggers/commenters if Fairey were a McCain supporter.

I’ll say this too: Fairey is anything but a “street artist” the guy’s had merchandise sold at Walmart for christsakes.

@10 (and I believe others have) suggested that Fairey is parodying the original content of the posters he’s ripping off. That’s a wrong (and, sorry, but stupid) reading of his work. Here’s a quote for the catalog of his show at Boston’s ICA (opening on Friday):

“First of all, I’m always assuming that these posters are known by people, so my referencing is not a big secret. These aren’t obscure images… Usually I’m using an image as an intentional reference.”

The aforementioned critics of Fairey’s are less concerned with the intellectual property aspect of the argument, more they’re questioning the ethics and repercussions of commodifying art that once had a real social and political context. My friend Josh explains further:

Mark [Vallen] is clearly concerned with social and political potentials of ART, and believes Fairey’s wholesale “theft” of historical images cheapens the potential for art to make change in the world. Lincoln Cushing, an artist, archivist and author who has been involved in the discussions, is very concerned with how plagiarism hurts efforts to empower our communities with their own revolutionary art history. However, he also supports strategic use of existing copyright law, and recently got Fairey to pay retroactive royalties on a t-shirt with Cuban artwork appropriated without credit. Favianna Rodriguez, also involved, has been particularly frustrated with Fairey’s use of and profiting off of the art of people of color, and the images of the struggles of people of color, while he has had to pay none of the costs for having to live as a person of color in this society or world.

Of all the critics, I find Favianna’s argument most compelling, not simply because racial politics frequently go without mention in this context.

I don’t think it’s transformative. All he did was change the colors and put the word “hope” at the bottom. Fairey’s poster is substantially similar to the original, making it a relatively easy case of infringement.

The Warhol comparisons are irrelevant. Warhol got a license for the Campbell’s Soup cans. Even if he hadn’t, Warhol’s prior infringement of Campbell’s copyrights would not be a defense to Fairey’s infringement of the AP copyright. Duh.

I don’t think there’s any inconsistency about BB’s posts about photographers’ rights: They fight against governmental restrictions of photographers.

Now, if you want to talk about fair use and remixing issues, BB seems to be consistently against IP laws as they stand.

And while you paint this as a AP photographer v. Fairey situation, the photographer isn’t suing because he doesn’t own the photo. The AP is. Characterizing it as an artist v. artist case is disingenuous in light of the facts.

As far as “I’d love to see the reaction from bloggers/commenters if Fairey were a McCain supporter” goes, it’s probably a fair question to ask. As fair a question as, “How much does AP’s Ron Fournier, DC Bureau Chief, friend of Karl Rove, demonstrated anti-Obama hack have to do with this?”

In my (not legally-binding opinion) this is fair use. Period. Ap can say, “oh, hay this is based on ours,” but to sue? C’mon. This is substantially different. No one is going to look at that and be confused between the artist and the AP. And is the AP losing money or acclaim or anything here?

There was a story about them recently aggressively pursuing folks who copy their feed.

Uh … isn’t that what their feed is FOR? I mean, I used to do news, and we had a printer in the back that just spewed AP feed. I’d circle the stories I’d read, retype them if there was time, edit or add local interest if there was more time, but that’s what AP is for.

We had a license and all, and that makes a difference but geez, c’mon. No need to be douchebags.

Granted, I am biased, and do all my stuff Creative Commons because I think it would be neat to be copied.

I used to be an artist using other people’s photos as source material. I never sold any of my work because I didn’t think it was right to modify someone else’s image and call it my own work. So I took up photography. Great hobby.

I hope Mr Fairey has scored enough coin from his fame that he can properly compensate the people without whom he’d have no source material, including the folks that made “They Live”. I also hope he sends a thank-you card to Brute, who’s iconic artwork for KMFDM also clearly ‘inspires’ his method.

Maybe President Obama should sue AP for copyright and use of his image. Obviously AP is making money from having a picture of President Obama on their articles, did they obtain permission from him before they used it?

I’ll state it again: Fairy DID profit off of the use of the image. He just chose to donate the proceeds.

He didn’t donate them to the red cross, or Jimmy Fund – he donated them to a political campaign, biiiig difference. The nature of this work was to support a political party, not to help those in need.

Fairey wasn’t making copies of this for himself to admire – he technically PUBLISHED (that’s usually when it becomes a violation of copyright) this the moment it went to the presses.

I guess this will all boil down to fair use. Fair use isn’t that cut and dry I suppose, and the courts always seem to muck-up the term – so who knows where it’ll go – I guess if Sherrie Levine can get away with photographing photographs and calling them her own practically anything can be considered fair use.

I guess what REALLY bugs me about Fairey in all this is that the way he does things completely disregards any sort of ethical process. It just seems completely disrespectful to me. Had Fairey simply asked/purchased the rights from the AP it’d be no big deal! What gives him the right? Fame?

He’s also incredibly hypocritical – try to copy, or even parody the Obey brand and you may get a nice c&d letter in the mail; just ask Baxter Orr about his.

I’m honestly baffled as to how any self-respecting professional artist can support the guy.

I think it’s safe to assume that Mr. Fairey has indirectly profited from the image. How many people have only recently been exposed to his oeuvre as a direct result of this one poster? His work is pretty easy on the eyes and as “underground” art goes, remarkably tame. His other prints and posters are probably selling like hotcakes. I don’t think this is a particularly egregious instance of him ripping off someone else’s imagery but since he does it so often, it’s a very convenient opportunity to call him out. These days though he’s just about as underground as Ikea.

Sure Fairey will profit from this in other ways, but who says he doesnt deserve it? Look how great of an image this is!!! It’s probably one of the, if not the, most important political posters of our lifetime. Obama supporter or not you gotta admit it.

That specific Obama photo is so unimportant that even the AP has posted a shot they say the poster image is taken from and it’s clearly a different photo! Look at the focus of the flag in the background! Yes it’s Obama, it’s his face, but this is really “a dime a dozen photo”. All the hoopla is just silly. Maybe it was just a slow day over at the AP offices?

That said, Fairey does reach out and pay other artists often and well when he does collaborations with photographers of truley iconic images, wether they be of punk rockers, Vietnam era marines, etc. And if you actually look at his books almost all of the images give credit to the inspiring originals.

You pegged it with “shakedown”. But I am disappointed in Sheps lawyer’s hesitation to not call it that. He knows this is going to be fixed behind closed doors and he doesn’t want to fubar that. But I DO. Especially since Shep has made name by perfecting the art of over exposure. He has a defacto responsibility to at least put up a fuck you to the AP. Granted I didn’t read the official transcript but the lawyer seemed happy to not talk about it while negotiations where on going. He could have at least gone so far as to say that the AP is off their rocker and that the AP would be stupid to enter into a court with this case. Hell Shep could get the ACLU EFF and take this crap all the way to the supreme court. Now that is what I call over exposure.

In away he has been poising himself to do that since he homaged Andre and pasted him on Buddy’s (providence RI official) face on a campaign billboard. That might of been the first time main stream took enough interest in him to arrest him. Who knows my stash of Andre stickers might just fetch a pretty penny someday.